stating that benedictions and invocations are proper so long as they do not exceed the scope of “the American civil religion”
How later courts described this case
- stating that benedictions and invocations are proper so long as they do not exceed the scope of “the American civil religion”
- Boggs, Circuit Judge, dissenting from the denial of rehearing en banc, joined by Judges David A. Nelson, Alan E. Norris, Suhreinrich, Siler and Batchelder
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
dissenting from the denial of rehearing en banc, joined by Judges DAVID A. NELSON, ALAN E. NORRIS, SUHRHEINRICH, SILER and BATCHELDER.
The panel’s opinion, which the failure of the court to grant rehearing en banc allows to stand, represents a radical departure from Supreme Court precedent on the permissibility of prayer and solemnization at the beginning of governmental functions. In its concept, it also represents a challenge to the freedom of speech of elected legislators. I therefore respectfully dissent from our court’s refusal to consider the matter further.
Judge Ryan’s dissent from the panel opinion ably sets forth the Supreme Court’s precedents, flowing from Marsh v. Chambers, 463 U.S. 783 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (1983), which recognize the role of solemnization in the inception of the meetings of a deliberative body, even in the form of prayers that call upon one or another form of deity satisfactory to members of that body. The panel majority’s attempt to carve out an exception for bodies that deal with educational subjects is unconvincing. This is especially so in light of the large proportion of the attention of general legislative bodies that is consumed with the subject of education.
I write separately, however, to call attention to the implication of the panel majority’s determined drive to erase the possibility of any inclusion of a request for divine guidance in the solemnization of at least this species of public meeting.
Presumably the panel majority would have no objection if the School Board choose to get themselves in the right frame of mind to deliberate by doing yoga, or taking deep breathing exercises. I’m sure it would be all right if they decided to read passages from a self-help book on effective meetings. And if they were to choose to commence meetings by having each publicly elected official, on a rotational schedule, read from some work of inspiration chosen by the member, such as Emerson’s “Self-Reliance,” Theodore Roosevelt’s “The Man in the Arena,” the latest work by Oprah Winfrey, or the collected wisdom of Barney, there could be no objection. But what a crabbed view of the nature of humanity is implied by the notion that the Constitution would forbid one of the members to choose to express inspiration from the Torah, Koran or Book of Common Prayer!
Two objections may be raised to my comparison. One, that there is no constitutional bar to establishing Emerson, only to establishing religion. Second, that in my example, the choice of expression is made by each legislator individually rather than by its chairman, at the suffrance of his colleagues, as appears to be the case from this record.
The first objection fails, however, where the religious expression is made in a manner that is merely equivalent to other modes of solemnization. Cases such as Rosenberger v. Rector and Visitors of the University of Va., 515 U.S. 819 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995), Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 , 115 S.Ct. 2440 , 132 L.Ed.2d 650 (1995), Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 , 113 S.Ct. 2462 , 125 L.Ed.2d 1 (1993), and Widmar v. Vincent, 454 U.S. 263 , 102 S.Ct. 269 , 70 L.Ed.2d 440 (1981), have shown that the religion clauses of the First Amendment do not mean that religious expression must be treated worse than other types of expression.
The second objection leaves its makers on the horns of a dilemma. If they seriously are concerned about the evils per *540 ceived by the majority in the practice of the Cleveland School Board, every one of those evils would still persist in my proposed system. Those who are simply appalled by religious expression at a governmental gathering would still suffer; those who feel excluded by the knowledge that some of their elected officials take guidance from a different source than then-own will still be forced to bear that knowledge, if they choose to attend every second of the meeting; and so on. Thus, if they are serious about suppressing those perceived evils, they must believe that the Constitution allows Marx but not Moses, Oprah but not Obadiah, and Emerson but not Ephesians, and the majesty of the federal courts must suppress the individual speech of legislators when it strays over the line.
Alternatively, if the majority and their supporters believe that it makes all the difference whether the solemnization is accomplished by the collective action of the board rather than by simply permitting individual and equal choice of the members, and thus would find no objection to my proposed alternative, they show just how thin is the distinction made. In fact, in most legislatures, choice of the person to give opening prayers is in fact frequently done in a manner similar to my hypothesis; individual members generally have the opportunity to invite a speaker of their choice on some distributional basis, perhaps with an institutional chaplain as a backstop. See, e.g., 145 Cong. Rec. H3698 (daily ed. May 27, 1999); 145 Cong. Rec. S5889 (daily ed. May 25, 1999); 145 Cong. Rec. S5633 (daily ed. May 20, 1999); 145 Cong. Rec. S4405 (daily ed. April 29, 1999); 145 Cong. Rec. S3889 (daily ed. April 20, 1999); 145 Cong. Rec. S3027 (daily ed. March 22, 1999); and especially 145 Cong. Rec. S1971 (daily ed. Feb. 25, 1999).
If my suggested alternative is in fact constitutional, I see little reason to doubt that it might well be adopted by Boards such as Cleveland’s, and the supposed bedrock constitutional principle announced by the majority would have amounted to almost nothing in the vast majority of instances.
For me, the function of solemnization, whether performed in Congress, at Presidential Inaugurations, or even in school boards, is one that does not constitute the establishment of a religion.
In arenas where philosophy, morals, and values are necessarily salient, that is to say in the actions of those who are empowered to rule over us by force, religious expression should not be forced to take a back seat to other sources of guidance.
I thus dissent from our failure to address these issues further by undertaking to rehear this case en banc.